This article endeavours to highlight the Constitutional limitations on the power of the High Court and other courts, except for the Supreme Court, in issuing final orders or judgments while deferring the reasons.
The issue has cropped up in the backdrop of an interesting order by the Delhi High Court in the Amazon vs Future Group case, by which the Court directed the respondents to maintain status quo till pronouncement of the reserved orders.
The reasons that form the basis of this order are not given to the litigant, but the litigant has been directed to maintain the status quo. In the author's opinion, such an approach cannot be adopted by any court except the Supreme Court of India.
Only the Supreme Court can reserve an order or give any relief while deferring reasons. No other court in India has the same power. Even the High Court does not have the said power.
The reason is that there is no appeal against the orders passed by the Supreme Court. It appears that since the Supreme Court passes such orders, other courts might take a cue from the same. However, those courts forget that there is no appeal against a Supreme Court order.
Examples of the Supreme Court exercising such powers include the recently decided Arnab Goswami case, where the Supreme Court passed interim orders granting bail, setting aside a Bombay High Court order, although the reasons for the order were given later on.
"The submissions of the learned counsel appearing on behalf of the rival contesting parties would be evaluated in the judgment for which reasons shall follow. The judgment is reserved," the top court had said.
Another instance wherein the Supreme Court has exercised such a power is the famous Minerva Mill's case wherein the majority led by then Chief Justice YV Chandrachud struck down Sections 4 and 55 of the Forty Second Constitutional Amendment. Pertinently, the reasons for the verdict were deferred [reported in (1980)2 SCC 591].
Interestingly, Justice PN Bhagwati (as his Lordship then was) dissented by refusing to pronounce an unreasoned verdict. Justice Bhagwati felt that he could not persuade himself to give the verdict without the reasons more so when it was "grave and momentous consequences" of deciding the Constitutional Amendment.
A High Court's order, unlike an order of the Supreme Court, is appealable. If a High Court were to pronounce a final order while deferring its reasons, and such order is challenged, the appellate court (in most cases, the Supreme Court) would not have the benefit of the reasons which led to the relief being granted/rejected by the High Court.
Thus, the result inevitably is that the operation of the order passed by the High Court has to be stayed, pending the delivery of a reasoned judgment. If any court passes such a final order with deferred reasons, the same should be stayed when appealed and eventually quashed for the lack of reasons.
Importantly, the Supreme Court has directed the listing of several such cases before a different Bench of the High Court other than the Bench which had previously decided on the matter (without informing reasons at the time), in the interest of fair play and justice.
The first and foremost authority on the subject is the Supreme Court's Constitution Bench verdict in State of Punjab v. Jagdev Singh Talwandi (Reported in (1984)1 SCC 596) authored by then Chief Justice YV Chandachud), which said:
"We would like to take this opportunity to point out that serious difficulties arise on account of the practice increasingly adopted by the High Courts, of pronouncing the final order without a reasoned judgment. It is desirable that the final order which the High Court intends to pass should not be announced until a reasoned judgment is ready for pronouncement. Suppose, for example, that a final order without a reasoned judgment is announced by the High Court that a house shall be demolished, or that the custody of a child shall be handed over to one parent as against the order, or that a person accused of a serious charge is acquitted, or that a statute is unconstitutional or, as in the instant case, that a detenu be released from detention. If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special leave petition in this Court against the order passed by the High Court. That places this Court in a predicament because, without the benefit of the reasoning of the High Court, it is difficult for this Court to allow the bare order to be implemented. The result inevitably is that the operation of the order passed by the High Court has to be stayed pending delivery of the reasoned judgment."
The Jagdev Singh Talwandi judgement was later followed in the Supreme Court cases of:
Zahira Habibulla H. Sheikh & Ors. v. State of Gujarat & Ors. (2004) 4 SCC 158 Para 81-82,
Mangat Ram v. State of Haryana (2008) 7 SCC 96 paras 5-10],
Ajay Singh & Anr. Etc. v. State of Chhattisgarh & Anr.- AIR 2017 SC 310 (Para 16-19),
There are three Supreme Court judgments in recent months, wherein a Justice Sanjay Kishan Kaul led benches reiterated this concern.
1. Balaji Baliram Mupade vs State of Maharashtra (Civil Appeal No.3564/2020)
Here, the Supreme Court has relied upon State of Punjab v. Jagdev Singh Talwandi (reported in (1984)1 SCC 596) in paragraph 2 to state:
"4. The aforementioned principle has been forcefully restated by this Court on several occasions including in Zahira Habibulla H. Sheikh & Ors. v. State of Gujarat & Ors. [AIR 2004 SC 3467 paras 80-82], Mangat Ram v. State of Haryana (2008) 7 SCC 96 paras 5-10] and most recently in Ajay Singh & Anr. Etc. v. State of Chhattisgarh & Anr.- AIR 2017 SC 310...
... 12. The appellant undoubtedly being the aggrieved party and prejudiced by the impugned order is unable to avail of the legal remedy of approaching this Court where reasons can be scrutinized. It really amounts to defeating the rights of the appellant to challenge the impugned order on merits and even the succeeding party is unable to obtain the fruits of success of the litigation...
... 15. Needless to say, the matter would be taken up by a Bench not consisting of the Members who constituted the Bench earlier."
2. Oriental Insurance Co. Ltd. Vs Zaixhu Xie & Ors. (Civil Appeal no. 4022/2020), where the Court observed:
"…If a judgment cannot be delivered on the same date or immediately thereafter, logically the judgment ought to have been at least reserved to facilitate the Judge to pen down the order. Result of not doing so is that the appellant being the aggrieved party, is unable to avail of the legal remedy. We have to follow the same course of action as in the judgment referred to aforesaid and thus set aside the impugned order and remit the matter back for reconsideration of the High Court on merits, uninfluenced by the reasons which have been set out in the impugned order.
Needless to say the matter would be taken up by a Bench not consisting of the member who constituted the bench earlier."
3. Sunita Agrawal vs Bhanwarlal (Civil Appeal no. 301/2021) where the Supreme Court said,
"... since these matters are carried forward to this Court, the reasons, albeit brief, have to be recorded to facilitate this Court to understand what weighed with the learned Judge while dismissing the petition. The approach of Article 136 of the Constitution cannot be adopted while deciding petitions by the High Court under Article 227 of the Constitution of India!
We are thus constrained to set aside the impugned order and remit the matter back for reconsideration so that the order to be passed one way or the other record(ing) reasons for the same, albeit even if they are brief. In view of what has transpired in the impugned order, it would be in the fitness of things that the matter is placed before another learned Judge.'
Often, the object of passing orders for which reasons are supplied later on is to have a speedy compliance in certain situations like in the Amazon vs Future dispute, where time is very crucial.
However, it is important to remember what the Supreme Court has said in State of Punjab v. Jagdev Singh Talwandi.
"... If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special leave petition in this Court against the order passed by the High Court."
The author is a lawyer practicing before the Gujarat High Court.